LAST WEEK IN COURT

AUGUST 14 - AUGUST 20

Watcher's Major Takeaways

ASSAULT CASES

  • In Brooklyn, a man was charged with Assault in the 3rd against a one-year-old child. After an Order of Protection was granted, there was discussion as to whether the defendant would be able to find a place to stay. In response, Judge Baron stated that she worried if he couldn’t find an alternative, he would return to the home he was supposed to stay away from. She then proposed that “maybe we need to set bail,” commenting “these allegations are horrendous,” to which the defense contested that “possibility of future offenses does not warrant bail.” While the Judge seemed to concede to this, she decided to not resolve the case, instead sending the defendant back to the Tombs to wait to be arraigned for the third time.
  • In another instance, a man was charged with Assault in the 3rd and Robbery in the 2nd after an alleged violent attack against a complaining witness whom already had an OP in place against him. ADA Tziyonah Langsam requested $15,000 bail, citing other pending assault cases involving the same complainant. Judge Kitis granted $7,500. Here a watcher noted that, “it’s hard to hear allegations of assault, especially intimate partner violence. This is one of the times I’ve felt most conflicted about what a good solution would be, but being held in jail is not a good solution.”

HIGH BAIL

  • A woman was charged with Attempted Assault in the 3rd after an altercation with her brother. The ADA, charging it as a Felony, requested $5,000 bail. The defense highlighted that the accused lived in a family shelter with her children, worked as a home health aid and could definitely not pay any bail. Judge Thompson ROR’d and adjourned for a diversion program.
  • ADA S. Dunning requested $5,000 bail for a man charged with Criminal Contempt in the 2nd, a misdemeanor, after he violated an order of protection to visit his children. His history of domestic incidents with the victim was offered as the rationale for high bail. In this instance, not only had the victim not called the police, but had also invited the defendant over to watch their children. Judge Kim set bail at $2,500.
  • ADA S. Dunning requested $1,500 bail for a black man charged with Criminal Possession of a Controlled Substance in the 7th, the lowest possible offense chargeable for unlawful possession. The defense rejected the DA’s offer of 20 days jail, Judge Kim ordered supervised release.
  • ADA Carlos J. Benitez requested $500 bail for a young black man charged with an unclear misdemeanor offense. The ADA offered 2 days community service for plea to the charge. The PD negotiated it down to 1 day and stated his client would take the offer. Judge Moses though, was forced to reject the plea, after the defendant would only answer “I guess,” in his admission of guilt, emphasizing various times that “I was arrested for was panhandling.”   
  • In stark contrast to the majority of witnessed cases, a well-known rapper who was charged with a Felony Assault was granted $10,000 bail in an agreement with the prosecution that had been negotiated ahead of time. An insurance company bond was ready to close immediately for him to be released. This proceeding spotlighted the major benefit of having financial resources within the criminal justice system.

MARIJUANA POSSESSION

  • One defendant, a black male, was charged with Marijuana Possession after he was pulled over for a failure to properly signal and subsequent supposed failure to pull over when asked. Officers alleged that he had “red, watery eyes,” and that they found “marijuana cigarettes,” in his car. The accused had also complied to a blood test that was pending results. The ADA asked for the judge to suspend his license. The defense noted that this case completely lacked evidence and that it was unclear what his defendant was even being charged with. A watcher noted that, “the fact that he is black and had ‘marijuana cigarettes’ really seems to have played a role.”
  • A young black man in Manhattan was arraigned for a Marijuana case from 2013. Although Judge Thompson was happy to grant an ACD, a watcher noted that, “the defendant still had to sit in handcuffs for an hour,” while awaiting his case.
  • In another courtroom, a young black man in Manhattan had his Marijuana case dismissed by Judge Kim, after ADA S. Dunning recommended the case be “dismissed in the interest of justice,” and noted that his office would no longer be prosecuting this offense. Another three marijuana cases that arose were similarly “dismissed in the interest of justice,” and did not require the accused to be present, signaling a positive change and the beginning of an actual adherence to the new policy.

Reflection from Watchers

Monday August 20, 2018
Brooklyn Criminal Court, AR3
Judge: Elizabeth Warin

A court watch shift makes it abundantly clear how much a real arraignment is nothing like a court proceeding you’d see on TV. This should come as no surprise, but seeing it all unfold so quickly and methodically, with a mishmash of documents being shuffled through with every case, is still disconcerting. The limited amount of time the court was able to spend on each arraignment not only has a negative impact on transparency, but can potentially affect the extent to which all the right evidence is marshaled and put into context.

The sheer volume of cases was noteworthy. It was also eye-opening to see just how many Orders of Protection a judge issues in just three hours of arraignments (granted, it was a busy Monday session).

I was surprised by how nervous some of the defense attorneys were, with some speaking very hesitantly. Occasionally the defense attorneys' argumentation was weak — at one point a defense attorney mentioned that a defendant’s previous warrant had been issued on the defendant's birthday, as if that was a key point. In another case, a defendant was accused of pulling a gun on a driver to steal a vehicle. After the prosecutor requested that bail be set at $50,000, the defense attorney, with his voice wavering nervously, requested that the defendant be released on his own recognizance, or else have bail set at $10,000. He undermined his own argument by sounding doubtful that he would get what he was asking for given the seriousness of the charges, and when the judge pushed back on how great the defendant's record was in relation to previous probations and warrants, he stammered in between long pauses, sounding uninformed. Bail was ultimately set at $20,000.

Limited resources rarely explicitly arose as a reason to reduce bail, but defense attorneys often used the phrasing that they were seeking a more "reasonable" bail amount. Risk assessments and flight risk determinations were not frequently discussed per se, but mitigating factors that arose fairly often were the defendant's employment and behavioral change, contextual factors within the defendant's prior criminal record, and support systems that the defendant had in place.

The judge was very no-nonsense, like when she made a point of insisting that one defendant should not be sent to Misdemeanor Brooklyn Treatment Court (MBTC) if there was no evidence whatsoever that he had a substance abuse problem. The prosecutor noted that having 5 misdemeanors make a person MBTC-eligible. The judge reiterated that sending defendants to MBTC when it was unnecessary, which is not uncommon, was not something she was interested in doing.

Monday August 20, 2018
Brooklyn Criminal Court, AR3
Judge: Elizabeth Warin

It was Monday night in Brooklyn. We were waiting for arraignments to start; I lost track of time, it could have been twenty minutes or forty. We were four white women Court Watchers sitting in a line with our papers out, ready to take notes, waiting for -- dare I say -- our source material. Everyone else in the audience - about twenty people, majority people of color - were there to see their loved one for the first time since their arrest.

Once arraignments started, it was a continuous stream of folks until 9pm, the end of our shift. At least 20 people. So, it was pretty challenging trying to track all the data. I ended up trying to pay attention to whether someone was ROR'd immediately, or if there was a discussion around their release. I was surprised that a lot of people were released on the spot and bail wasn't explicitly mentioned. Overall, bail was set on less than half of the cases. When it was set, I was surprised that the judge sometimes, but not always, and for reasons I don't understand, gave a credit card alternative, which was in the same amount as the cash bail. 

If a defendant had people in the audience show up for them, the defense always mentioned that as an argument in favor of release. There was a young man whose caseworker, also quite young, came to advocate for his release. The judge told the young man, "that's very nice of your caseworker to have come here, be sure to thank her." The judge made similar comments to other young defendants throughout the night, like, "It's good you're in school". Her words felt impersonal, obvious to the point of being condescending, or empty in their generalness.

There were two or three cases where the prosecutor flagged a defendant's warrant history for the judge, and the judge then gave pause. It just so happened that for these defendants the warrants in question were all from 10-plus years ago! And had since been vacated! It's hard to believe that warranting on a case ten years ago is a consideration in getting bail set in the present. This system doesn't give folks the benefit of the doubt that their lives are different for them today than they were 10-plus years ago, and that the reasons why they failed to appear in court 10 years ago aren't relevant today!